Yesterday, the Security Service of Ukraine announced that Viktor Medvedchuk had provided evidence regarding the ‘Samara-West direction’ oil pipeline and the purchase of coal from the so-called L/DNR. Medvedchuk, who is a suspect in the ‘coal case’, said that Petro Poroshenko’s was allegedly involved in the organization of coal purchases in the temporarily occupied territories, as well as in the seizure of the ‘Samara-West direction’ pipeline (better known in the media as ‘Medvedchuk’s pipe’). Against the background of the Russian-Ukrainian war, the news provoked heated discussions, and we will try to look at it from a legal point of view.
First of all, it should be noted that it is not easy to provide a legal assessment of something that belongs to jurisprudence only by name. The SBU’s presentation should be commented on by political scientists and political technologists, and if we take into account that its publication was in the third month of the full-scale war with Russia, it should be commented by mental health specialists.
However, if the initiators of this process want to interpret it as a legal rather than a political activity, we will try to evaluate their actions from this point of view.
We should start with the fact that the information published by the SBU cannot be formally called evidence, because the Criminal Procedure Code requires recording investigative actions (one of which is interrogation) and the information obtained in them by shooting protocol videos.
It is important that the recorded information should not contain signs of any processing outside the scope of the law. Instead, the SBU published a presentation of several slides with suspect’s words and a video clip in which the footage of Viktor Medvedchuk was mixed with photos from the news and the same slides.
It is worth mentioning that when the topic of ‘coal case’ was just emerging in the public sphere, the media received photocopies of suspicion of former energy minister Demchyshyn. Not slides and a video clip, but the document itself, compiled more or less in accordance with the formal requirements of the criminal code. However, the document of more than 20 pages interested few people, except journalists and lawyers, so, apparently, the SBU decided to use more effective SMM methods.
In addition, it is worth noting the peculiarities of criminal proceedings during martial law, namely paragraph 2 of part 11 of Article 615 of the Criminal Procedure Code of Ukraine, which states that the testimony obtained during the interrogation of a suspect under martial law may be used as evidence in court only if the defense counsel participated in such an interrogation, and the course and results of the interrogation were recorded using available technical means of video recording.
As already mentioned, the photos and videos published by the SBU do not show that these requirements were met, which once again brings us to the fact that the Security Service did not publish evidence, but its vision of the situation in a convenient for social networks format. It is good for the political campaign (however, let the experts judge it), but bad for the criminal process.
First of all, it should be remembered that none of the evidence has a predetermined force, as part 2 of Article 94 of the CPC of Ukraine directly warns. The same article stipulates that each piece of evidence must be evaluated in terms of relevance, admissibility, truthfulness, and all of them – in terms of sufficiency and interrelationship for the relevant procedural decision.
In addition, even in the fact that the SBU made public, there are some inconsistencies, such as in the dates – according to Medvedchuk, Petro Poroshenko asked to acquire ‘Prykarpatzahidtrans’ in 2016, while its current owners began this procedure in the summer of 2015, and the intention to sell the company with part of the pipeline was announced by the previous owner in 2014 and, accordingly, there was no need to assist Medvedchuk in the acquisition.
Or the statement about the cessation of pumping diesel through the pipeline in 2019, while in 2021 it made about 20% of the entire Ukrainian diesel market.
No less surprising are the words of Viktor Medvedchuk, a professional lawyer and civil servant with many years of experience, that it turns out that the Minister of Energy is a subordinate of the President. Or the Minister of Internal Affairs. It is these words of Medvedchuk that bring us to the next paragraph.
It is important to distinguish between testimony given by a witness or victim and testimony given by a suspect such as Viktor Medvedchuk. The former are criminally liable for what they say – a witness for refusing to testify and for giving false testimony, and the victim – for giving false testimony.
The law does not contain such a reservation with regard to the suspect. Moreover, the suspect has the right (!) rather than the obligation to testify, which means being able to provide the investigation with absolutely any information of his own volition and for his own benefit without any formal risk. The fact that Viktor Medvedchuk is doing just that was confirmed by the head of the Security Service of Ukraine, who noted that the suspect ‘cooperates with the investigation’.
This is in line with the intention to exchange Viktor Medvedchuk for captured Ukrainian servicemen – he may be released from jail relatively quickly and avoid serving a sentence for many years (or at least a long trial with a probable stay in jail all this time), and the SBU has a ‘monopoly’ for his testimonies, because the defense will not have any opportunity to ask him own questions.
However, there is still the question of where the Kremlin needs Medvedchuk more – in Russia or in the Ukrainian pre-trial detention center as a ‘victim of the regime’. Moreover, the exchange is the only possible result of cooperation for Medvedchuk, given the provisions of Article 469 of the CPC of Ukraine, and each of the options will bring him and the prosecution their benefits.
In addition to all the above, the publication of part of the information obtained during the investigation before the investigation is completed and before the defense is acquainted with the case gives the defense grounds to speak about pressure on the court.
Finally, there are a few more things to note. Medvedchuk’s case, first of all the publication of his words by the SBU, is a very insignificant episode against the background of the Russian-Ukrainian war and the future of Ukraine. However, this is a precedent that will set acceptable limits for the next authorities.
If the politics can be waged by criminal procedural methods during a full-scale war with Russia, it means that it can be waged by such methods at any other time. The lack of understanding of this, as well as the lack of understanding in the third month of the full-scale war of Ukraine’s fundamental differences from Russia in everything, including change of government, creates not very pleasant prospects for all who associate themselves and their lives with Ukraine. Including show participants.